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No.

In The

Supreme Court of the United States

OCTOBER TERM, 2006

MINERAL COUNTY, TOWN OF SUPERIOR, ST. REGIS SCHOOLDISTRICT, SUPERIOR SCHOOL DISTRICT NO. 3, MONTANA

COALITION OF FOREST COUNTIES, and TRICON TIMBER LLC,

Petitioners,

v.

ECOLOGY CENTER, INC.,

Respondent.

On Petition for Writ of Certiorari to the United States Courtof Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

M. Shaun Donovan Michael E. HaglundMineral County Attorney Scott W. Horngren300 River StreetSuperior, Montana 59872 HAGLUND KELLEY HORNGREN(406) 822-3535 JONES & WILDER LLP

101 SW Main, Suite 1800Portland, Oregon 97204Telephone: (503) 225-0777

September 7, 2006

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QUESTIONS PRESENTED

1. Does the National Environmental Policy Act, 42 U.S.C. 4321 et seq., or the

National Forest Management Act, 16 U.S.C. 1604(g)(3)(B), impose on the U.S.

Forest Service a procedural requirement to conduct long-term, on-the-ground

research to definitively conclude there will be beneficial effects to wildlife from

thinning trees in old growth stands before deciding to conduct such a project to

improve forest health, reduce the risk of wildfire and safely reintroduce prescribed

fire?

2. Does the National Environmental Policy Act, 42 U.S.C. 4321 et seq., impose on

the U.S. Forest Service a procedural and substantive requirement to collect on-site

soil data for every timber harvest unit before it completes the final environmental

impact statement?

3. Does the National Forest Management Act, 16 U.S.C. 1604(g)(3)(B), impose a

“mandate to maintain wildlife viability” on the U.S. Forest Service?

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PARTIES TO THE PROCEEDINGS

The petitioners in this case are Mineral County, Town of Superior, St. Regis School

District, Superior School District No. 3, Montana Coalition of Counties and Tricon Timber LLC.

Respondent is the Ecology Center, Inc. The federal defendants in this case are Deborah Austin,

in her official capacity as Forest Supervisor for the Lolo National Forest, Abigail Kimbell,

Regional Forester of Region One of the U.S. Forest Service, and the United States Forest

Service, an agency of the U.S. Department of Agriculture.

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RULE 29.6 CORPORATE DISCLOSURE STATEMENT

The only corporate petitioner in this case, Tricon Timber LLC, states that it does not issue

shares to the public and has no affiliates, parent companies, or subsidiaries issuing shares to the

public.

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PETITION FOR A WRIT OF CERTIORARI

Mineral County, Town of Superior, St. Regis School District, Superior School District

No. 3, Montana Coalition of Forest Counties and Tricon Timber LLC (collectively “Mineral

County”) respectfully petition for a writ of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-37a) is reported at 430 F.3d 1057.

The opinion of the district court (App., infra, 40a-53a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on May 16, 2006 based upon an

opinion of the court filed on December 8, 2005. App. 38a. A petition for rehearing and

rehearing en banc was denied on May 8, 2006. App. 54a. On August 1, 2006, Justice Kennedy

extended the time within which to file a petition for writ of certiorari to and including September

7, 2006. Jurisdiction of the Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS

This case involves three statutes: (1) the Administrative Procedure Act (“APA”), 5 U.S.C.

706(2)(A), which authorizes a court to set aside final agency action that is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law,” (2) the National Environmental

Policy Act (“NEPA”), 42 U.S.C. 4321 et seq., and (3) the National Forest Management Act

(“NFMA”), 16 U.S.C. 1604(g)(3), which directs the Secretary of Agriculture to promulgate

regulations:

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specifying guidelines for land and resource management plans developed toachieve the goals of the [Resources Planning Act] Program which -- (B) providefor diversity of plant and animal communities based on the suitability andcapability of the specific land area in order to meet overall multiple-useobjectives, and within the multiple-use objectives of a land management planadopted pursuant to this section, provide, where appropriate, to the degreepracticable, for steps to be taken to preserve the diversity of tree species similar tothat existing in the region controlled by the plan.

STATEMENT

1. This case arises from Forest Service resource management decisions following

wildfires on the Lolo National Forest in Montana that burned approximately 74,000 acres in

2000. App., infra, 3a. The Forest Service prepared an environmental impact statement (“EIS”)

for the Post Burn Project to evaluate salvage and restoration of the burned and unburned areas in

the vicinity of the wildfires. Id. The Forest Service completed the Final EIS and Record of

Decision for the Lolo National Forest Post Burn Project in July 2002. Id.

2. As part of the project, the Forest Service decided to salvage burned timber and to

treat unburned old growth forest stands by commercially thinning small-diameter trees and by

prescribed burning. Id. at 3a; 27a. The objective was to improve the forest health of the old

growth stands, minimize the risk the stands would be destroyed by a wildfire, and safely

reintroduce prescribed fire. Id. at 6a; 27a; 34a-35a. Many of the old growth stands in the

project area were threatened by insects and disease and had been destroyed by the wildfires that

occurred in 2000. Id. at 34a-35a.

3. To evaluate the salvage of dead trees, the Forest Service completed a field

sampling of soils in the project area. Id. at 18a-19a; 29a. The soils were sampled in areas where

the fires had burned, with some samples located inside proposed harvest units and other samples

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located outside the units. Id. A regional soil protection standard precluded ground-disturbing

activities where soil disturbance would exceed 15% of a harvest unit. Id. at 18a. The Forest

Service relied on the field soil samples to conclude that the harvest units currently did not exceed

the 15% standard. Id. at 22a; 29a-31a. The Forest Service also adopted a mitigation measure

that supplemented the field samples and required an on-the-ground examination of the units prior

to timber harvest to confirm that the soil standard would be satisfied. Id. at 24a-25a; 32a.

4. The district court concluded that “the record demonstrates that the Lolo National

[Forest] took the requisite hard look at the impacts of the project on both the animal species at

issue, and on old growth and soil conditions.” Id. at 49a. The Court also noted that:

The Post Burn Project evaluates current and historical soil conditions on the LoloNational Forest and identifies the predicted impacts of the Project on thoseconditions. FEIS 3-31 - 32; 3-35-48. Further the Forest Service proposedmitigation and monitoring plans to follow up on the results of the project. FEIS 2-36; 2:41-42; 2:61-62.

Id. Finally, the district court concluded that:

Plaintiff repeatedly disputes management decisions of the Forest Service,including what Plaintiff sees as the Forest Service’s misguided fire policy, theForest Service’s approach to old growth habitat management (Br., 8-9), and theLNF’s choice of scale for its consideration of soils impacts (Br., 20), among otherthings. This Court is not in a position to settle scientific disputes.

Id. at 50a.

5. A divided panel of the Court of Appeals reversed. Id. at 1a-25a. Judges Fletcher

and Gould, writing for the majority, held that the Forest Service was arbitrary and capricious in

its decision to thin the small trees from old growth stands to improve forest health, minimize fire

risk, and reintroduce fire into those stands through prescribed burning because the agency was

not reasonably certain the treatment would not harm old growth wildlife. Id. at 6a-12a. The

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majority characterized the Forest Service’s conclusion that the treatments would benefit old

growth stands and wildlife as an “unverified hypothesis” that had to be confirmed through

clinical trials before the Forest Service could manage the forest in the way it proposed. Id. at 9a.

6. In dissent, Judge McKeown criticized the majority’s characterization of treating

old growth stands as an “unverified hypothesis.” Id. at 33a. The dissent explained that the Forest

Service’s assumptions were supported by observational data, id., and further noted that:

the status quo is anything but stable. The Forest Service presents uncontestedevidence that the failure to treat old-growth areas risks the very harms feared byEcology Center, even though it has provided no evidence to support such a claim. Op. at 16038 (“Ecology Center does not offer proof that the proposed treatmentcauses the harms it fears . . . .”). In fact, the record reveals that the failure to treatold-growth areas could result in “considerable loss of old growth trees from barkbeetle predation,” which will put “at risk . . . specific habitat niches for manywildlife species that are adapted to the more open growth old-forest character.” Old-growth areas “are now at risk for major disturbances such as disease andinsect epidemics and high-severity stand replacing fires.” Inaction or delaythreatens the species Ecology Center seeks to protect.

Id. at 34a-35a.

8. The majority also held that the Forest Service’s assessment of soils using a sample

of soil conditions and verification of those conditions on each harvest unit before allowing

harvest to proceed did not comply with NEPA. Id. at 22a-25a. Instead, the majority concluded

that the Forest Service could only satisfy NEPA by field testing the soil in every proposed harvest

unit before completing the EIS. Id. at 24a-25a.

9. The dissent questioned whether the majority could draw from NEPA an “‘on-site

soil analysis’ doctrine.” Id. at 32a. The dissent concluded that the Forest Service adequately

sampled soils and that the majority improperly required the agency to visit every harvest unit

before deciding on a course of action, noting that the majority improperly “changes our posture

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of review to one where we sit at the table with Forest Service scientists and second-guess the

minutiae of the decisionmaking process.” App. 28a.

REASONS FOR GRANTING THE WRIT

This case is about the Ninth Circuit Court of Appeals’ overly expansive view of the

requirements of NEPA and NFMA. By misconstruing the requirements of NEPA and NFMA,

the Ninth Circuit has made it increasingly time consuming, expensive, and difficult for the

United States Forest Service to apply its professional expertise and discretion in managing

natural resources on the national forests in western states. The Ninth Circuit’s application of

NEPA and NFMA to natural resource management decisions is particularly important because

the Circuit encompasses about 452 million acres of public lands, which represents about 60% of

all federally-owned land in the United States.

The Ninth Circuit, more than any other court of appeals, has difficulty applying the

APA’s deferential arbitrary and capricious standard of review in the context of NEPA. This

Court has corrected the Ninth Circuit’s expansive view of NEPA’s requirements in the past and

should do so again. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353-59

(1989) (reversing Ninth Circuit determination that NEPA required an agency to include a fully-

developed mitigation plan and a worst case analysis in an EIS); Marsh v. Oregon Natural

Resources Council, 490 U.S. 360, 375-77, 385 (1989) (reversing Ninth Circuit determination that

an agency’s decision not to supplement an EIS was reviewed under a reasonableness standard

instead of the arbitrary and capricious standard of review, and also reversing Ninth Circuit

determination that the agency erred by failing to supplement its EIS); Department of Transp. v.

Pub. Citizen, 541 U.S. 752, 124 S. Ct. 2204, 2214-17, 2218-19 (2004) (reversing Ninth Circuit

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determination that an agency needed to prepare an EIS to consider the environmental effects of

Mexican motor carriers entering into the U.S. where the agency lacked discretion to prevent such

entry). This Court also has cautioned that even in the context of NEPA, the concept of

federalism constrains judicial review because a court cannot “interject itself within the area of

discretion of the executive as to the choice of the action to be taken.” Kleppe v. Sierra Club, 427

U.S. 390, 410 (1976). Once again, the Ninth Circuit needs to be reminded of the need for

constraint.

The Court also should review the Ninth Circuit’s conclusion that NFMA imposes on the

Forest Service a “mandate to maintain wildlife viability.” The term “wildlife viability” is not

found in NFMA. Rather, NFMA directs the Forest Service to “provide for plant and animal

diversity.” 16 U.S.C. 1604(g)(3)(B). The Ninth Circuit’s position is contrary to the Seventh

Circuit which has concluded that the diversity provision of NFMA does not establish a

substantive standard that elevates wildlife management above management for other resources or

that limit the Forest Service’s discretion to manage the national forests.

In this case, the Circuit imposed procedural and substantive requirements in the name of

NEPA and NFMA that are found neither in the statutes nor their implementing regulations. The

decision presents an important federal question about management of the fire-prone forests in the

west and conflicts with this Court’s opinions which have emphasized that NEPA is a procedural

statute that does not dictate substantive environmental results. Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 350 (1989). The end result of the majority’s misinterpretation of

the law was to place the court in the impermissible role of decisionmaker. The dissent

summarized the problem thusly:

This issue is of profound importance throughout the western United States but of1

particular import to petitioners, who are from Montana. Montana wildlands are the most at riskto wildfire from changes in climate. Donald McKenzie et al., Climatic Change, Wildfire, andConservation, 18 Conservation Biology 890, 894 (2004) (“Montana is the most sensitive, with a50-fold increase in mean area burned over the observed range in climate.”). Montana currently issuffering through another major fire season, with the Derby Fire alone having burned over180,000 acres and destroyed 26 homes.http://www.inciweb.org/incident/440/ (last visited September 6, 2006). In August 2006, theJournal of Science published two articles discussing the increasing threat of major wildfires inassociation with climate change. Steven W. Running, Global Warming Causing More, LargerWildfires?, 313 Science 927 (2006); A.L. Westerling et al., Warming and Earlier Spring IncreaseWestern U.S. Forest Wildfire Activity, 313 Science 940, 943 (2006) (“The overall importance ofclimate and wildfire activity underscores the urgency of ecological restoration and fuelsmanagement to reduce wildfire hazards to human communities and to mitigate ecologicalimpacts of climate change in forests that have undergone substantial alterations due to the pastland uses.”). The increase in wildfires is undisputed, and reducing stand density to protect oldgrowth stands from such fires is one of the Forest Service’s highest priorities. See generallyHealthy Forest Restoration Act of 2003, 16 U.S.C. 6501-91.

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The Ninth Circuit, like other circuits, repeats frequently the legal mantras ofadministrative review in the context of environmental decisions: “arbitrary andcapricious,” “hard look,” and “no second guessing.” These standards are easy toarticulate, but it is more difficult to know when we have cross the line fromreviewer to decisionmaker. In this case, we have gone too far.

Id. at 26a. The Court’s review is warranted to affirm for the Ninth Circuit that it cannot impose

additional procedural or substantive requirements not found within NEPA or NFMA as a

prerequisite for agency forest resource management decisions.

The Ninth Circuit would have the Forest Service fiddle with analysis having no statutory

basis while the national forests of the west burn. The Forest Service wants to thin smaller trees

from old growth stands and reintroduce prescribed fire to protect the stands from uncontrolled

wildfire which is an increasingly significant threat to the forests in the west. However, the Ninth1

Circuit would have the Forest Service conduct clinical trials regarding the effects of such land

management before taking action to protect old growth stands. It would take decades for the

The Forest Service has a division that conducts forest management research, and2

the long term effects of fuel reduction are being studied by Forest Service research stations. Seehttp://www.fs.fed.us/research/pdf/Wildland_book.pdf (last visited September 5, 2006), WildlandFire and Fuels Research and Development Strategic Plan: Meeting the Needs of the Present,Anticipating the Needs of the Future, Research and Development Publication FS-854, June 2006.

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Forest Service to conduct clinical trials in an effort to determine the “definitive” effects on

wildlife of thinning and prescribed burning in old growth stands. See Daubert v. Merrell Dow,

509 U.S. 579, 590 (1993) (pointing out that “arguably, there are no certainties in science”). The

Forest Service does not have this luxury of time given the imminent threat of wildfire, and

neither NEPA nor NFMA demand the “verified hypothesis” approach as a predicate to resource

management as articulated by the majority. 2

This case also is of national importance because the Lolo Post Burn Project was designed

to reduce hazardous fuels in old growth stands in response to the National Fire Plan.

Supplemental Excerpts of Record (“SER”) 43. The National Fire Plan arose from the

devastating wildfire season of 2000 when then-President Clinton directed the Secretaries of

Agriculture and Interior to develop a response to severe wildfires and reduce fire impacts on rural

communities. http://www/fireplan.gov/reports/7-19-en.pdf (last visited September 5, 2006).

Congress subsequently directed the Secretaries of Agriculture and Interior to identify

communities within the vicinity of federal lands that are at high risk for wildfire. Department of

Interior and Related Agencies Appropriations Act 2001, Pub. L. No. 106-291, 114 Stat. 921,

1009 (2000). The Secretaries identified more than 9,000 at-risk communities near federal lands

managed by the Department of Agriculture. 66 Fed. Reg. 43384 (August 17, 2001). Among

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these at-risk communities was petitioner Superior, Montana. Id. at 43409. It is vitally important

to the communities of the west that the Forest Service not be second guessed by the courts in

exercising its discretion to reduce hazardous fuels on the nationals forests.

1. The Ninth Circuit erred in holding that NEPA and NFMA impose aprocedural requirement on federal agencies to complete on-the-ground research in support of natural resource management decisionsbefore taking action.

The majority’s nondeferential and distrustful approach to reviewing the Forest Service’s

land management decisions represents a significant departure from this Court’s holding that

deference should be at its maximum when reviewing agency decisions involving “an unverified

hypothesis” at the frontiers of science. Baltimore Gas & Elect. Co. v. NRDC, Inc., 462 U.S. 87,

103 (1983) (a reviewing court should “be at its most deferential when the agency is making

predictions, within its area of special expertise, at the frontiers of science”). In reviewing the

Forest Service’s decision to thin dense understory trees to improve forest health, reduce the risk

of wildfire, and safely reintroduce fire into old growth stands, the majority imposed a scientific

knowledge requirement not found in NEPA, NFMA, or the APA. Citing clinical trials associated

with drug studies as an example, the majority contended that the Forest Service must test its

theories with on-the-ground research before it can act. App. 9a. Cf. App., infra, 35a-36a

(criticizing the imperfect analogy of drug studies to forest land management) (McKeown, J.,

dissenting).

The Forest Service based its land management decision for the Lolo Post-Burn Project on

the current state of scientific knowledge, particularly focusing on changes in old growth habitat.

Although the majority assumed that designated old growth was a static habitat, such that it

The proposed prescribed fire would have removed most trees less than three3

inches in diameter while leaving large, older trees intact. SER 239. The proposed thinningwould have removed smaller, invasive shade tolerant species while retaining large ponderosapine, western larch, and Douglas-fir. SER 157.

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needed to be preserved from “invasive” Forest Service land management activities, id. at 9a-10a,

the EIS explained the Forest Service’s reasonable concerns that absent treatment, old growth

would be lost to bark beetle attack and high-severity stand-replacing wildfires. See id. at 34a-35a

(noting that the “status quo is anything but stable,” and that the Forest Service had put forth

uncontroverted evidence that inaction threatened old growth habitat and associated species)

(McKeown, J., dissenting). The Forest Service was not crying wolf, as the burned portions of the

project area had lost hundreds of acres of old growth to wildfire. SER 217-19. Even assuming

the old growth habitat was somehow impervious to insects or fire, the ponderosa pine, western

larch, and Douglas-fir old growth trees in the overstory were being threatened by invasive and

competing shade tolerant fir species, a process that would detrimentally alter the character of the

old growth stands over time. SER 211-12.

Contrary to the majority’s determination that the Forest Service was “altering the

composition of old-growth habitat through an invasive process,” app. 10a, the Forest Service’s

objective was not to remove old growth habitat but rather to create, maintain, and improve that

habitat. SER 148 (“No live old growth trees . . . would be harvested or cut. All live old growth

trees would be retained for biodiversity, legacy, and habitat.”) (emphasis added). All trees that

met old growth criteria in harvest units were to be retained. Id. However, the majority ignored

the fact that the limited treatment would not convert old growth stands to non-old growth stands. 3

Instead, the majority concluded that the Forest Service should have ignored the various identified

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threats to old growth, which as the dissent noted, would have been in itself arbitrary and

capricious. App., infra, 35a (McKeown, J., dissenting).

The majority believed that the Forest Service’s conclusion that prescribed fire and

thinning would help create, maintain, and improve old growth conditions was an “unverified

hypothesis” pulled from thin air. However, the Forest Service through its annual forest plan

monitoring and evaluation had reviewed the beneficial effects of prior timber sales in old growth.

SER 41-42. The Forest Service also had conducted a detailed analysis of the effects of treating

old growth on other timber sales which demonstrated that thinning and prescribed burning helped

restore the forest to an historic old growth structure that was more sustainable and resilient in the

face of natural disturbances such as insects and wildfire. SER 693; SER 849-55. In contrast to

the Forest Service’s evidence regarding the benefits of treating old growth habitat, Ecology

Center did not offer a scintilla of evidence that such action harmed old growth or old growth

dependent species on the Lolo National Forest. App., infra, 7a (“Ecology Center does not offer

proof that the proposed treatment causes the harm it fears . . . .”); 34a. Thus, there is no support

for the majority’s decision to invalidate the Forest Service’s factually-supported decision by

imposing a NEPA or NFMA procedural requirement of conclusive research prior to agency

action.

2. By dictating the timing and extent of field surveys to verify soilconditions, the Ninth Circuit improperly imposed procedural andsubstantive requirements not found in NEPA.

The majority wrongly concluded that to satisfy the requirements of NEPA, the Forest

Service must field verify soil conditions on all harvest units before completion of the EIS. App.,

infra, 22a-25a. Thus, the Ninth Circuit found in NEPA a substantive requirement to field verify

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soils on every harvest unit, and a procedural requirement to do so before completing the final

EIS. The decision conflicts with this Court’s precedent holding that “the only procedural

requirements imposed by NEPA are those stated in the plain language of the Act,” Vermont

Yankee Nuclear Power Corp. v. NRDC, Inc., 435 U.S. 519, 548 (1978) (citing Kleppe v. Sierra

Club, 420 U.S. 390, 405-06 (1976)), and that NEPA imposes no substantive requirements upon

an agency. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352-53 (1989).

At issue in this case was the requirement that no timber harvest occur in an “activity area”

or harvest unit that exceeded 15% detrimental soil conditions. App., infra, 18a. Contrary to the

majority’s opinion, knowledge of the soil condition of each and every proposed harvest was not

necessary for the Forest Service to make a reasoned choice among alternatives about how best to

minimize soil disturbance. To avoid timber harvest on any activity area that exceeded 15%

detrimental soil disturbance, the Forest Service planned to examine every harvest unit in the

project’s sale area before commencing timber harvest. App., infra, 24a. The majority belittled

the Forest Service’s approach as a “decision to authorize the Project first and verify later,” and it

held that to satisfy NEPA, the Forest Service was required to visit every proposed harvest unit for

every alternative considered in the EIS before the EIS was completed. Id. at 25a. This holding

runs afoul of NEPA for two reasons.

First, the majority’s holding established a substantive soil data collection rule not found

in NEPA. As the dissent explained, “we are left to conclude that not only does the court of

appeals set bright-line rules, such as requiring an on-site, walk the territory inspection, but it also

assesses the detail and quality of that analysis – even in the absence of contrary scientific

evidence in the record.” App. 29a-30a.

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Second, the majority improperly imposed a procedural rule that soil data must be

collected on all potential harvest units before the EIS is complete. The majority’s conclusion that

the Forest Service may not “authorize a project first and verify later” is fundamentally at odds

with the concept of mitigation under NEPA which allows an agency to adopt measures to avoid

an impact by not implementing certain parts of an action. 40 C.F.R. § 1508.20(a). For example,

the Forest Service commonly establishes riparian buffers in units to protect streams before

implementing timber harvest and delineates the riparian protection zones in the field after

approval of the EIS but before implementation of the project. The 15% detrimental soil

disturbance restriction is essentially a mitigation measure designed to protect soil. Indeed,

NEPA’s implementing regulations define “mitigation” as “(a) Avoiding the impact altogether by

not taking a certain action or parts of an action; (b) Minimizing impacts by limiting the degree or

magnitude of the action and its implementation.” 40 C.F.R. § 1508.20. The panel’s decision

thus conflicts directly with the Supreme Court’s decision in Robertson v. Methow Valley

Citizens Council, 490 U.S. 332 (1989), which cautioned that:

There is a fundamental distinction, however, between a requirement thatmitigation be discussed in sufficient detail to ensure that environmentalconsequences have been fairly evaluated, on the one hand, and a substantiverequirement that a complete mitigation plan be actually formulated and adopted,on the other . . . it would be inconsistent with NEPA’s reliance on proceduralmechanisms – as opposed to substantive, result-based standards – to demand thepresence of a fully developed plan that will mitigate environmental harm beforean agency can act.

Id. at 352-53. The majority was not free under NEPA to impose on the Forest Service its own

view of the appropriate procedural steps to address the impacts on soils. There was no legal

infirmity inherent in the Forest Service’s procedural approach to survey some areas before the

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EIS was final, adopt a mitigation measure requiring field verification of the soil conditions on

each selected harvest unit, and then follow up with a visit to the harvest units before project

implementation.

3. The Ninth Circuit erred in finding that NFMA contains a wildlifeviability mandate that transcends the congressionally-declaredmultiple uses of the national forests, and its decision is in conflict withthe Seventh Circuit.

The majority’s conclusion that the statutory language of NFMA embodies a viability

mandate – one that cannot be satisfied unless the Forest Service definitively determines through

research that the effects of removing small trees in old growth forest will benefit wildlife

viability – conflicts with NFMA and the decision of the Seventh Circuit Court of Appeals in

Sierra Club v. Marita, 46 F.3d 606 (7 Cir. 1995). th

The majority erroneously stated that NFMA contains a mandate to maintain wildlife

viability:

In providing for multiple uses, the forest plan must comply with substantiverequirements of the Forest Act designed to ensure continued diversity of plant andanimal communities and the continued viability of wildlife in the forest . . . .” Idaho Sporting Congress, 305 F.3d at 961; 16 U.S.C. § 1604(g)(3)(B). In additionto the mandate to maintain wildlife viability, the Forest Service must maintain soilproductivity. 16 U.S.C. § 1604(g)(3)(C).

App., infra, 6a (emphasis added). See also id. at 8a (referring to a viability mandate in

discussing the Ecology Center’s position that the Forest Service was arbitrary because it was not

“reasonably certain that treating old-growth is consistent with NFMA’s substantive mandate to

ensure species diversity and viability”). The majority then held that because the Forest Service

did not conduct formal research regarding the effects on wildlife of commercial thinning and

prescribed burning in old growth forests, the agency’s assumptions about the effects of thinning

The majority also cited to an earlier Ninth Circuit decision for the proposition that4

NFMA contains a viability mandate. App. 5a-6a (citing to Idaho Sporting Congress v.Rittenhouse, 305 F.3d 957, 961 (9 Cir. 2002)). However, a careful reading of that case revealsth

that in Rittenhouse, the Ninth Circuit found a viability “mandate” in a since-eliminated NFMAimplementing regulation, not in the statute itself. Rittenhouse, 305 F.3d at 961-62 (relying on 36C.F.R. 219.19 (1999), which provided that “wildlife habitat shall be managed to maintain viablepopulations of existing native and desired non-native vertebrate species in the planning area”).

The Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. 528-31, imbued the5

Forest Service with abundant discretion to decide the priorities for management of the nationalforests.

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and burning on wildlife were arbitrary and capricious in light of NFMA’s supposed viability

mandate. Id. at 10a-11a.

NFMA’s statutory language simply does not contain a mandate to maintain wildlife

viability, let alone a viability mandate that trumps all other multiple-use considerations. Rather,

the section of the statute referenced in the panel opinion, see id. at 6a, merely requires the Forest

Service to “provide for diversity of plant and animal communities based on the suitability and

capability of the specific land area in order to meet overall multiple-use objectives.” 16 U.S.C.

1604(g)(3)(B). Multiple-use objectives include the production of timber. 4 5

The NFMA’s diversity language in section 1604(g)(3)(B) not only contains no wildlife

viability requirement, it also is so qualified that “it is difficult to discern any concrete legal

standards on the face of the provision.” Charles F. Wilkinson & H. Michael Anderson, Land &

Resource Planning in the National Forest, 64 Or. L. Rev. 1, 296 (1985). Further, the majority’s

discovery of a substantive wildlife viability mandate in 16 U.S.C. 1604(g)(3)(B) directly conflicts

with the Seventh Circuit’s interpretation of NFMA, which declined to find a substantive

requirement in the statute’s diversity provision. Sierra Club, 46 F.3d at 620. See also Glisson v.

U.S. Forest Serv., 876 F.Supp. 1016, 1029 (S.D. Ill. 1993) (same), aff’d, 51 F.3d 275 (7 Cir.th

While this Court has held that the Endangered Species Act imposes heightened6

obligations to protect endangered species, see generally TVA v. Hill, 437 U.S. 153 (1978),endangered species were not at issue in the Forest Service’s management of old growth habitat,and the Ecology Center advanced no Endangered Species Act claims.

16 F:\SWH\j13753.wpd

1995). The Fifth Circuit also has addressed the issue, noting that the so-called “diversity

mandate itself has been the subject of considerable debate.” Sierra Club v. Espy, 38 F.3d 792,

801 (5 Cir. 1994). Respectfully, it is time for this Court to resolve this important debate.th

More than a decade ago, the Forest Service in a proposal to amend its rule for land and

resource management planning on the national forests acknowledged that “the interpretation of

the NFMA diversity provision as a goal rather than a concrete standard” was supported by

NFMA’s legislative history and relevant judicial opinions. 60 Fed. Reg. 18,886, 18,892 (April

13, 1995). Rather than creating a substantive diversity standard, section 1604(g)(3)(B) directs

the Forest Service to “provide for” diversity in order to meet multiple-use objectives. Thus,

regardless of whether the majority’s wildlife viability holding was premised under the former

viability regulation or the statute itself, the majority erred in elevating wildlife viability above all

other multiple-use considerations contrary to the explicit language of Congress in the NFMA. 6

CONCLUSION

The Court should grant Mineral County’s petition for writ of certiorari.

Dated this 7 day of September, 2006.th

Respectfully submitted,

Haglund Kelley Horngren Jones &Wilder LLP

Michael E. HaglundScott W. Horngren

17 F:\SWH\j13753.wpd

101 SW Main, Suite 1800Portland, OR 97204Telephone: (503) 225-0777

M. Shaun DonovanMineral County Attorney300 River StreetSuperior, MT 59872Telephone: (406) 822-3535

Attorneys for Petitioners